SH ASHISH KUMAR SHARMA v. SH MONU & ORS

1. This appeal has been filed by the claimant/injured for enhancement of the compensation awarded by order dated 01st November 2022 passed by the Motor Accidents Claims Tribunal (‘MACT’), South East District, Saket Court, New Delhi, whereby compensation of Rs. 14,32,301/- along with interest @ 9% per annum from the date of filing the DAR was awarded.

2. Brief facts are that the accident occurred on 23rd august 2017 at about 8:00 AM, when Ashish Kumar Sharma/ injured was traveling with his friends as pillon rider on motorcycle. When the injured along with his friends reached Sarita Vihar, New Delhi, the backside wheel of their vehicle got punctured requiring them to stopped the vehicle on the side of the road. A truck bearing no. HR-55S-0350 came at high speed, without MAC APP 232/2023 2 of 11 any indicator in a rash and negligent manner and hit the vehicle from the backside resulting in grievous injuries to claimant/ injured. The injured was taken to Apollo Hospital, New Delhi, wherein MLC No. 602/17 was prepared. FIR was registered under Section 279/338 Indian Penal Code, 1860 and subsequently chargesheet was filed.

3. Mr. S.N. Parashar, counsel appearing for injured/claimant, has claimed enhancement on three grounds. Firstly, that the functional disability was considered at 25% despite permanent physical disability being certified at 82% in relation to right lower limb; Secondly, that the future prospects have not been granted, considering that claimant was below 40 years of age on the date of the accident, 40% ought to have been awarded towards future prospects and; thirdly, that the compensation on account of non-pecuniary heads was grossly inadequate.

4. Mr. Attin Kumar Rastogi, counsel for Insurance Company, contends that the assessment of the MACT was right and appropriate, and there was no reason for the functional disability to be increased, particularly considering that claimant/ injured was only taking tuition and could have continued that vocation.

5. The Court has considered the Disability Certificate, which assesses the permanent disability at 82% in relation to the right lower limb. Paragraph 28 of the award also describes the nature of medical condition and injury as compound fracture distal femure lateral condyle + proximal tibia fracture right side & other injures. Further, the testimony of PW1/ injured noted that rod, plate, and screws were inserted in his right leg, due to which he was walking with the support of a walker for a long time and still is not fully well done to such a fracture. It is further noted that he MAC APP 232/2023 3 of 11 cannot walk properly till date due to the injuries received in the accident in question. He further deposed that due to such injury, he left his study and his whole career is ruined. He further deposed that at the time of accident he was taking tuition and earning about Rs. 15,000/- per month.

6. Even though the claimant, did not place on record proof of the fact that he was taking tuitions, but having considered the evidence on record as well as the photograph presented by Mr. Parashar relating to claimant’s condition, the Court is of opinion that 25% of functional disability is highly inadequate, considering that his whole mobility and functionality would be completely affected resulting from the said injuries. Further, claimant was 18 years of age at the date of the accident, which is quite early in his life and claimant’s whole earning life would have been affected completely.

7. Reliance in this regard can be placed on the judgment of Supreme Court in Raj Kumar v. Ajay Kumar (2011) 1 SCC 343, wherein it was held that the Tribunal must assess not merely the extent of permanent disability but its actual impact on the claimant’s earning capacity, which may differ from the medical percentage of disability. This requires evaluating the claimant’s pre-accident vocation, the functions affected, and whether livelihood can still be earned despite the disability. The Court emphasised that disability and loss of earning capacity are distinct concepts, except in cases where evidence shows they coincide. Relevant paragraphs are extracted as under:

8. In the present case, applying the principles laid down in Raj Kumar v. Ajay Kumar (supra), this Court is required to assess the effect of the permanent disability on claimant’s earning capacity and not merely adopt the medical percentage of disability. The claimant, being 18 years of age at the time of the accident and having suffered 82% permanent disability in relation to the right lower limb, has clearly suffered a substantial restriction in mobility and functional ability. While it is possible that he may continue to undertake some form of tuition work, his capacity to carry on such activity effectively and consistently stands significantly impaired. Thus, considering his avocation, age, and the nature of injuries, the functional MAC APP 232/2023 6 of 11 disability is reasonably assessed at 50%, reflecting a substantial, though not total, loss of earning capacity.